Commonwealth Caribbean Tort Law

Gilbert Kodilinye, Natalie Corthesy

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781138479661
• eBook ISBN: 9781351065085
• Edition: 6
• Topic: Jura
• Subtopic: Rechtsvergleich

Commonwealth Caribbean Tort Law is well established as the leading text on tort law in the Caribbean jurisdictions, now updated in its sixth edition.

This new edition sees the addition of co-author Dr Natalie Corthésy. It introduces a brand-new chapter on the nature of personality rights, with a strong focus on passing off and suggested solutions to redress the issues. All chapters have been updated to reflect ever-changing developments in jurisprudence, legislation and legal thinking, including revisions of the special contribution on the misuse of private information by Dr Vanessa Kodilinye.

Commonwealth Caribbean Tort Law is ideally suited for LLB courses in Caribbean universities and law students studying modules on Caribbean Law, as well as students undertaking the CAPE Law examinations. Legal practitioners, business executives and industrialists working on the legal aspects of these areas will also find this book useful.

Chapter 1 Introduction

DOI: 10.4324/9781351065108-1

Definition

A tort may be defined broadly as a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages.

The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others, and the substantive law of torts contains those principles which have been developed to determine when the law will and when it will not grant redress for damage suffered. Such damage may take any of several different forms, such as physical injury to persons; physical damage to property; injury to reputation; and damage to economic interests.

Monetary damages is the usual remedy for a tort. The other important remedy is the injunction, which is a court order forbidding the defendant from doing or continuing to do a wrongful act. Whether the claimant is claiming damages or an injunction, he must first prove that the defendant has committed a recognised tort, for the law of torts does not cover every type of harm caused by one person to another. The mere fact that D’s act has caused harm to C does not in itself give C a right to sue D; C must go further and show that D’s act was of a type which the law regards as tortious.

Tort distinguished from other legal concepts

Tort and crime

The main purpose of the criminal law is to protect the interest of the public at large by punishing those found guilty of crimes – generally by means of imprisonment or fines, and it is those types of conduct which are most detrimental to society and to the public welfare that are treated as criminal. A conviction for a crime is obtained by means of a criminal prosecution, which is usually instituted by the state through the agency of the police or at the discretion of the Director of Public Prosecutions. A tort, on the other hand, is a purely civil wrong which gives rise to civil proceedings, the purpose of such proceedings being primarily not to punish wrongdoers for the protection of the public at large, but to give the individual claimant compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.

Although it is not disputed that the basic function of the law of torts is to compensate the claimant, there is a school of thought which points to what may be called the ‘deterrent’ aspect of tort law. The essence of this view is that the possibility of liability in tort may have the effect of inducing persons to modify their behaviour so as to avoid harming others; it is suggested that tort law ‘teaches people that wrongful acts do not pay and, as a consequence, people will act more carefully’.¹ Protagonists of this view may mention, for example, the deterrent effect of the libel laws which are designed to curb the power of newspapers to destroy the reputations of individuals by publishing defamatory matter.

1 McKendrick, LLB Tort Textbook, 5th edn, 1993, Sydney: HLT, p 2.

Even more significant, according to this school of thought, has been the expansion of the tort of negligence, which has encouraged the governing bodies of professionals, such as the accounting profession, to produce codes of practice which guide their members as to the standard of care expected of them in the interest of the public. Lastly, it is pointed out that the court has power in certain very limited circumstances to award ‘exemplary’ or ‘punitive’ damages against a tortfeasor.

The ‘deterrent’ theory has two main weaknesses, however. In the first place, the general principle of the law of negligence that a person has a duty ‘to take reasonable care’ is too vague to have any realistic impact on most persons’ standard of behaviour. Secondly, the deterrent theory fails to take into account that, in practice, tort damages will most often be paid by the tortfeasor’s insurers on the terms of his liability insurance policy. This significantly reduces the deterrent effect on the tortfeasor, because he passes the bill on to the insurance company.

Although there are fundamental differences between criminal and tortious liability, it is significant that some torts, particularly trespass, have strong historical connections with the criminal law, and that the same act may be both a tort and a crime. For example, assault, battery and false imprisonment are both crimes and torts, being derived from the ancient writ of trespass, whereby ‘the defendant is not only accused of a breach of the King’s peace, but, if he fails to appear to the writ, he will be outlawed, and, if he is found guilty, he will be punished by fine and imprisonment’.²

2 Fifoot, History and Sources of the Common Law, 1949, London: Stevens, p 45.

Because of this common historical origin, today the ingredients of the torts are virtually identical to those of the crimes.

There are, in addition, several examples of conduct which may be both criminal and tortious. For instance, if A steals B’s bicycle, he will be guilty of the crime of theft (or larceny); at the same time, A will be liable to B for the tort of conversion. Again, if A wilfully damages B’s goods, he is liable for the crime of malicious damage to property and for the tort of trespass to chattels.

The effect in such cases is that the civil and criminal remedies are not alternative but concurrent, each being independent of the other. The wrongdoer may be punished by imprisonment or fine, and he may also be compelled in a civil action for tort to pay damages to the injured person by way of compensation. There is, however, a principle, known as the rule in Smith v Selwyn,³ according to which, if the wrongful act is a felony, no action in tort can be brought against the defendant until he has been prosecuted for the felony, or a reasonable excuse has been shown for his not having been prosecuted.⁴

3 [1914] 3 KB 98. Under this rule, the victim of an aggravated assault, for example, cannot sue his assailant in tort unless and until the latter has been prosecuted. 4 In Hibbert v AG (1988) 25 JLR 429 (Supreme Court, Jamaica), Gordon J held that the production of a letter from the Director of Public Prosecutions, indicating that no criminal prosecution for assault was advised, satisfied the rule in Smith v Selwyn. In Buckle v Dunkley (1966) Court of Appeal, Jamaica, Civ App No 29 of 1965 (unreported) [Carilaw JM 1966 CA 23], it was held that if the victim of an alleged felony reports the facts to the police and the latter decide not to prosecute, the victim is entitled to go ahead with his civil action, since he will have taken all the steps that the law requires him to take to procure the prosecution of the alleged offender.
In Koonoo v Ramoutar (1984) High Court, Trinidad and Tobago, No 3237 of 1978 (unreported), Collymore J held that the effect of the rule in Smith v Selwyn is not that the bringing of a criminal prosecution is a condition precedent to the claimant’s civil cause of action, but that his cause of action will be stayed to allow the criminal prosecution to take precedence. Accordingly, the limitation period for the civil action begins to run from the time of the wrongful act.
In any event, it appears that the rule in Smith v Selwyn has been discarded in England and similarly is no longer good law in Jamaica. In Bank of Jamaica v Dextra Bank and Trust Co Ltd (1994) 31 JLR 361 (per Carey JA) and Panton v Financial Institutions Services Ltd (2003) Privy Council Appeal No 93 of 2002 (per Sir Kenneth Keith), it was stated that there is no longer any rule in England or in Jamaica that civil proceedings must be stayed pending the conclusion of criminal proceedings based on the same facts, but rather it was a matter of the court, in the exercise of its inherent jurisdiction to control its own proceedings, balancing justice between the parties and taking account of all relevant factors.

Lastly, an important distinction between tort and crime is that, to succeed in a criminal trial, the prosecution must prove its case ‘beyond reasonable doubt’, whereas in an action in tort the claimant is merely required to establish his claim ‘on a balance of probabilities’. It is thus easier for a claimant to succeed in tort than for the prosecution to secure a conviction in crime. One effect of this difference between the standards of proof is that, where the alleged tortfeasor has been acquitted in criminal proceedings, such acquittal is not conclusive evidence of lack of fault in the civil action, where a lesser degree of proof of wrongdoing is required.

Tort and contract

Tort and contract are both areas of the civil law and there is a much closer relationship between them than there is between tort and crime. The precise relationship between tort and contract is a matter of debate and there is a school of thought which argues that tort and contract should be subsumed under a ‘law of obligations’.

The traditional distinction made between tort and contract is that in tort the duties of the parties are primarily fixed by law, whereas in contract they are fixed by the parties themselves. In other words, contractual duties arise from agreement between the parties, whilst tortious duties are created by operation of law independently of the consent of the parties.

This distinction may be misleading, however, for, in the first place, although it is true that duties in contract are created by agreement between the parties themselves, nevertheless parties to a contract are also subjected to those underlying rules of contract which the law imposes upon them. Secondly, the duties owed by two contracting parties towards one another are frequently not duties which they expressly agreed upon but obligations which the law implies, such as the terms implied under the sale of goods and hire purchase legislation.⁵ Conversely, some duties in tort can be varied by agreement, for example, the duties owed by an occupier of premises to his lawful visitors; and liability in tort can be excluded altogether by consent (under the doctrine of volenti non fit injuria).

5 For examples in the Commonwealth Caribbean, see Sale of Goods Act, Cap 371, Hire Purchase Act 1987 (Antigua); Sale of Goods Act, Ch 310, Hire Purchase Act, Ch 342 (The Bahamas); Sale of Goods Act, Cap 317, Hire Purchase Act, Cap 328 (Barbados); Sale of Goods Act, Cap 214, Hire Purchase Act, Cap 220 (Belize); Sale of Goods Act, Cap 349, Hire Purchase Act 1874 (Jamaica); Sale of Goods Act, Ch 82:30, Hire Purchase Act, Ch 82:33 (Trinidad and Tobago).

Sometimes, a wrongful act may be both a tort and a breach of contract. For example:

1. (a) if A has contracted to transport B’s goods, and due to A’s negligence the goods are lost or damaged, A will be liable to B both for breach of the contract of carriage and for the tort of negligence;
2. (b) a dentist who negligently causes injury in the course of extracting a tooth may be liable to the patient both for breach of an implied term in his contract with the patient to take reasonable care and for the tort of negligence.

In addition to those cases where the same set of facts can give rise to claims in both contract and tort (as in the cases of the carrier and the dentist), there are areas where there is an overlap between the principles of tort and contract, and it is here that the argument that contract and tort are part of one law of obligations is at its most persuasive. Such areas include fraudulent misrepresentation in contract, which is the alter ego of the tort of deceit; negligent misrepresentation, which was developed in the law of tort but applies equally to contract law; remoteness of damage, which is a concept common to both contract and tort, although the concept is not appli...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Preface
• Table of Cases
• Table of Statutes
• 1 Introduction
• 2 Trespass to the Person
• 3 Malicious Prosecution
• 4 Negligence
• 5 Occupiers’ Liability
• 6 Employers’ Liability
• 7 Nuisance
• 8 The Rule in Rylands v Fletcher
• 9 Liability for Animals
• 10 Defamation
• 11 Passing Off
• 12 Personality Rights
• 13 Vicarious Liability
• 14 General Defences
• 15 Damages for Personal Injuries and Death
• 16 Medical Negligence in the Commonwealth Caribbean
• 17 The Developing Tort of Misuse of Private Information
• Appendix: Additional Commonwealth Caribbean Cases
• Index